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Mediation in Low Trust or No Trust Situations

Continued mediation training is important for any mediator. I attended the recent 2-day American Bar Association Section of Dispute Resolution conference in Washington DC. The breakout sessions about the psychology of conflicting parties reinforced the benefits of mediation and sharpened the skills of the attendees.

Moty Cristal, an Israeli negotiator spoke about participating in tense negotiations between Israel and Hamas with terrorists taking siege in the Church of the Nativity. Clearly, this is negotiating in Low or No Trust situation, and was successful with trained mediators.  He described that since the 9/11 World Trade Center attack, we have gone from "the Power of Language, to the Language of Power".   We see that now in the divorce context when people would rather act than attempt to sit and resolve conflicting issues.

Unlike court proceedings, mediation's foundation is effective communication looking for the interests behind each position. The parties start from an emotional mindset, a place of reaction; mediators move parties to a place where they use their prefrontal cortex to make knowing decisions.  Divorce mediation may start as a Low Trust negotiation, but can be shifted.  Based on studies, this shift is unlikely to happen in the anxiety of a courtroom, court house or tense negotiations in a formal setting.

To foster effective communication, when a party only says he/she wants the child 50% of the time, the experienced mediator asks "Are you wanting 50% of parenting time because you feel it is your duty, or it's financially better for you or you believe your children need it or you believe that your spouse needs time off and you want to help him/her?"  Taking time to explore and explain interests builds trust in the negotiations.

Do you need to trust the other party in order to negotiate? No, it is just an "issue" to be resolved. To mediate, parties need to have respect for the mediator and the mediation process. Trust in the neutral or the opponent can develop over time. Trust develops from an unbiased neutral or from the clarification of each person's concerns and desires; it also develops from a complete disclosure of finances. Trust develops when one moves from emotion, based upon previous experience, to making decisions based upon knowledge and understanding.

Here is an example of moving from emotion to knowledgeable decision making: A bat and a ball cost $1.10 in total. The bat costs a dollar more than the ball. How much does the ball cost? If you thought ten cents (like most people tested), you used the emotional part of your brain. You were wrong. The ball costs five cents. My goal is to slow the process so parties make knowledgeable decisions.

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Law Office of Steven J. Hirsch, Esq

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